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en-usTechdirt. Stories filed under "weapons"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 16 Jul 2015 17:00:00 PDTDailyDirt: It's 11:57pm... Do You Know Where Your Nuclear Bombs Are?Michael Hohttps://www.techdirt.com/articles/20101012/10513511391/dailydirt-1157pm-do-you-know-where-your-nuclear-bombs-are.shtml
https://www.techdirt.com/articles/20101012/10513511391/dailydirt-1157pm-do-you-know-where-your-nuclear-bombs-are.shtmlDoomsday Clock says it's 3 minutes to midnight -- the same time it was in 1949. Sure, plenty of people are saying we're not building new nuclear bombs, and we have some pieces of paper that say some countries (ahem, Iran) aren't going to build new nukes. But... tick tock. Are we really any safer from nuclear self-annihilation?

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

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]]>urls we dig uphttps://www.techdirt.com/comment_rss.php?sid=20101012/10513511391Mon, 1 Jun 2015 12:20:04 PDTUS Government Making Another Attempt To Regulate Code Like It Regulates International Weapons SalesTim Cushinghttps://www.techdirt.com/articles/20150529/12571631154/us-government-making-another-attempt-to-regulate-code-like-it-regulates-international-weapons-sales.shtml
https://www.techdirt.com/articles/20150529/12571631154/us-government-making-another-attempt-to-regulate-code-like-it-regulates-international-weapons-sales.shtml
When code is treated like weapons, bad things happen. Governing bodies have previously treated encryption as weaponry, ensuring that only the powerful will have access to strong encryption while the general public must make do with weaker or compromised variants.

More recently, the US government went after the creator of a 3D-printed gun, claiming the very existence of printing instructions violated international arms regulations. So, it's not just the end result that's (potentially) covered under this ban (the actual weapon) but the data and coding itself. That's currently being fought in court, carrying with it some potentially disturbing implications for several Constitutional rights.

Specifically, the BIS proposal would add to the list of controlled technology:

Systems, equipment, components and software specially designed for the generation, operation or delivery of, or communication with, intrusion software include network penetration testing products that use intrusion software to identify vulnerabilities of computers and network-capable devices.

And:

Technology for the development of intrusion software includes proprietary research on the vulnerabilities and exploitation of computers and network-capable devices.

On its face, it appears that BIS has just proposed prohibiting the sharing of vulnerability research without a license.

As if things weren't already dangerous enough for security researchers, what with companies responding with threats and lawyers -- rather than apologies and appreciation -- when informed of security holes and the US government always resting its finger on the CFAA trigger. Violating the terms of this agreement could see researchers facing fines of up to $1 million and/or 20 years in prison.

Wassenaar was originally limited to physical items used in conventional weapons, like guns, landmines and missiles. It was amended in December 2013 to include surveillance tech, mainly in response to stories leaking out about Western companies like Gamma (FinFisher) and Hacking Team selling exploits and malware to oppressive governments, which then used these tools to track down dissidents and journalists.

The push to regulate the distribution of these tools had its heart in the right place, but the unintended consequences will keep good people from doing good things, while doing very little to prevent bad people from acquiring and deploying weaponized software.

The Wassenaar Arrangement's attempt to wrestle a mostly ethereal problem into regulatable problem was, for the most part, handled well. It defined the software it intended to control very narrowly and provided some essential exceptions:

Notably, the controls are not intended apply to software or technology that is generally available to the public, in the public domain, or part of basic scientific research.

But, even so, it still contained the potential to do more harm than good.

We have significant problems with even the narrow Wassenaar language; the definition risks sweeping up many of the common and perfectly legitimate tools used in security research.

Either interpretation (Wassenaar, BIS) is a problem. The BIS version is much worse, but both will result in a less-secure computing world, despite being implemented with an eye on doing the opposite, as Robert Graham at Errata Security points out.

[G]ood and evil products are often indistinguishable from each other. The best way to secure your stuff is for you to attack yourself.

That means things like bug bounties that encourage people to find 0-days in your software, so that you can fix them before hackers (or the NSA) exploit them. That means scanning tools that hunt for any exploitable conditions in your computers, to find those bugs before hackers do. Likewise, companies use surveillance tools on their own networks (like intrusion prevention systems) to monitor activity and find hackers.

Thus, while Wassenaar targets evil products, they inadvertently catch the bulk of defensive products in their rules as well.

And the results will disproportionately negatively affect those who need these protections the most. This is the end result of controls written with physical items (which originates from physical manufacturing plants and travel on physical means of conveyance) in mind but copied-pasted to handle "items" that can traverse the internet with no known originating point.

That's not to say export controls would have no leverage. For example, these products usually require an abnormally high degree of training and technical support that can be tracked. However, the little good export controls provide is probably outweighed by the harm -- such as preventing dissidents in the affected countries from being able to defend themselves. We know they do little good know because we watch Bashar Al Assad brandish the latest iPhone that his wife picked up in Paris. Such restrictions may stop the little people in his country getting things -- but they won't stop him.

The "open-source" exception in Wassenaar can be useful, up to a point. Researchers could post their findings to Github, as Graham points out, to ensure they're still protected. This, of course, means the Arrangement is still mostly useless, as the moment it's put into the public domain, any entity cut out of the distribution loop by this agreement can immediately make use of posted vulnerabilities and exploits. It also makes research destined to be open-sourced forbidden weaponry until the point it's actually made public. So, a laptop full of research is a prohibited weapon, while a Github post containing the same is not.

When security researchers discover 0-day, they typically write a proof-of-concept exploit, then present their findings at the next conference. That means they have unpublished code on their laptop, code that they may make public later, but which is not yet technically open-source. If they travel outside the country, they have technically violated both the letter and the spirit of the export restrictions, and can go to jail for 20 years and be forced to pay a $1 million fine.

Pro tip:

Thus, make sure you always commit your latest changes to GitHub before getting on a plane.

Statements made by the BIS aren't exactly comforting. The BIS's implementation doesn't include an open-source exception, but supposedly, this will still be taken into consideration when the US government starts throwing around fines and prison sentences. Randy Wheeler of the BIS:

"We generally agree that vulnerability research is not controlled, nor is the technology related to choosing a target or finding a target, controlled." However, she undermined her message by stating that any software that is used to help develop 0-day exploits for sale would be covered by the proposal.

Again, bad for researchers. This gives the government leeway to imply intent when prosecuting, because the allowed and the forbidden look very similar while still in their formative stages.

[T]he only difference between an academic proof of concept and a 0-day for sale is the existence of a price tag.

Even if the exploit is not on the market at the point the government steps in, it would take very little to insinuate that it would have been headed to market, if not for the speedy intervention of regulators.

There is some good news, however. The BIS is accepting comments on its proposed adoption (and partial rewrite) of the amendments to the Wassenaar Arrangement. The comment period ends on July 20, 2015, so sooner rather than later would be good if you're interested in steering the government away from doing further damage to the livelihoods of security researchers.

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]]>a-zero-day-may-now-last-20-yearshttps://www.techdirt.com/comment_rss.php?sid=20150529/12571631154Wed, 25 Feb 2015 11:28:00 PSTFedEx Refuses To Ship Perfectly Legal Milling Machine (Which Can Also Craft Gun Parts), Can't Provide A Coherent Reason WhyKarl Bodehttps://www.techdirt.com/articles/20150225/05002530133/fedex-refuses-to-ship-perfectly-legal-milling-machine-which-can-also-print-gun-parts-cant-provide-coherent-reason-why.shtml
https://www.techdirt.com/articles/20150225/05002530133/fedex-refuses-to-ship-perfectly-legal-milling-machine-which-can-also-print-gun-parts-cant-provide-coherent-reason-why.shtmlmaker space in Burlington, and while I lack the inclination to build amazing contraptions out of Raspberry Pis, soldered metal and imagination myself, there's a Lego-loving corner of my brain that has an endless appreciation for the fusion of technology and creativity aided by modern marvels like 3D printers. It probably goes without saying that inexpensive and/or communal 3D printers, milling machines and other tools have opened the door toward a massive realm of new innovation, whether that's building less expensive prosthetic limbs, robotics or drones.

Of course, the fact that a lot of this technology can also help build weapons has resulted in no limit of hysteria that has a great potential to hamper a lot of the better aspects of this technological evolution. The latest case in point comes courtesy of FedEx, which is refusing to ship a computer controlled (CNC) mill dubbed the Ghost Gunner. Sold by Defense Distributed, the $1,500 machine can carve any number of aluminum objects from digital designs. With a few cheap extra parts, it can also help craft untraceable, semi-automatic firearms. This, apparently, has worried the FedEx legal and marketing departments:

"This device is capable of manufacturing firearms, and potentially by private individuals,” FedEx spokesperson Scott Fiedler wrote in a statement. “We are uncertain at this time whether this device is a regulated commodity by local, state or federal governments. As such, to ensure we comply with the applicable law and regulations, FedEx declined to ship this device until we know more about how it will be regulated."

Of course, we're entering an era where anything can be built at home, and just because firearms are among them, that doesn't make the tools illegal. Any lathe or mill can be used to help make a firearm; Defense Distributed appears to have gotten attention because of founder Cody Wilson's salty demeanor, and the fact it's specifically marketing their milling machine as a potential firearms maker. Again though, that doesn't magically make the ownership of such technologies against the law:

"But buying, selling, or using the Ghost Gunner isn’t illegal, nor is owning an AR-15 without a serial number, says Adam Winkler, a law professor at UCLA and the author of Gunfight: The Battle over the Right to Bear Arms in America. "This is not that problematic,” he says. "Federal law does not prohibit individuals from making their own firearms at home, and that includes AR-15s."

When pressed, FedEx hasn't been able to give a decent reason why it has suddenly added milling machines to its list of unshippable materials alongside hazardous waste and corpses. As we've noted when discussing the hysteria over firearm printing instructions or legislative efforts to thwart gun printing, this is a genie that's well out of its bottle, and no limit of cajoling the agitated djinn back into confinement is likely to be successful. Still, it seems inevitable that we try, in the process stumbling on and over a myriad of technological potential in the misguided quest to roll back the clock to a simpler age.

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]]>baby, bathwaterhttps://www.techdirt.com/comment_rss.php?sid=20150225/05002530133Thu, 21 Aug 2014 07:14:28 PDTWhy Do Police In Suburban St. Louis Have More Powerful Weapons Than Marines In Afghanistan?Mike Masnickhttps://www.techdirt.com/articles/20140820/11411528266/why-do-police-suburban-st-louis-have-more-powerful-killing-weapons-than-marines-afghanistan-iraq.shtml
https://www.techdirt.com/articles/20140820/11411528266/why-do-police-suburban-st-louis-have-more-powerful-killing-weapons-than-marines-afghanistan-iraq.shtmlnecessarily so scary when put to use. So it's interesting to read a former Marine's analysis of the military equipment being used in Ferguson, which more or less confirms that it not only looks scary but absolutely is scary. Much of the discussion is about how all those "non-lethal" "riot control" weaponry is actually quite dangerous and potentially lethal. Here are a few examples:

There are scattered reports of stun grenade use in Ferguson. Also known as flashbangs or flash grenades, this weapon of choice for American SWAT teams (and Israeli soldiers) originated in the British special forces community more than four decades ago. Ostensibly less than lethal, stun grenades have been known to kill or severely injure numerous victims, and the device was recently in the news for burning a 19-month-old baby in Georgia, resulting in a coma, during one of the thousands of domestic police raids this year. They are designed to temporarily blind and deafen, thanks to a shrapnel-free casing that is only supposed to emit light and sound upon explosion. Nonetheless, the list of casualties is long, and the number of flammable mishaps is disconcerting. In Rise of the Warrior Cop, Balko recounts a story of an FBI agent accidentally lighting himself and his vehicle on fire.

[....]

These "pepper balls" are lethal; the Boston Police Department banned them after a young woman was killed by one. It passed right through the eye and skull to the brain. She was guilty of being present in a rowdy crowd after a Red Sox v. Yankees game in which the former won. The ACLU condemned the use of such projectiles for the purposes of crowd management back in 1997, following an unfortunate incident in Eugene, Oregon. They even convinced Eugene officials to do the same. It's about time St. Louis County and the rest of the country followed suit.

[....]

Like the stun grenade, employing wooden pellets as a form of riot control was spearheaded by the British decades ago, mainly in Hong Kong. As the ACLU makes clear, considerable litigation has proceeded in the aftermath of such tactics, including suits brought by protesters in Oakland who bore the brunt of these measures around the beginning of the Iraq War. Longshoremen on their way to work also suffered and sued accordingly. As a result, the Oakland police department caved and beating residents with wooden projectiles as a means of crowd management was rendered illegal.

There's a lot more in the article as well. But here's the bit that really stood out for me. After posting a picture of militarized police moving down the street looking pretty scary, the former marine, Lyle Jeremy Rubin, explains how they're more well armed than the actual military in Afghanistan:

What we're seeing here is a gaggle of cops wearing more elite killing gear than your average squad leader leading a foot patrol through the most hostile sands or hills of Afghanistan. They are equipped with Kevlar helmets, assault-friendly gas masks, combat gloves and knee pads (all four of them), woodland Marine Pattern utility trousers, tactical body armor vests, about 120 to 180 rounds for each shooter, semiautomatic pistols attached to their thighs, disposable handcuff restraints hanging from their vests, close-quarter-battle receivers for their M4 carbine rifles and Advanced Combat Optical Gunsights. In other words, they're itching for a fight. A big one. It's a well-known horror that the US military greets foreign peoples in this fashion as our politicians preach freedom, democracy and peace. It's an abomination that the police greet black communities in the States with the same trigger-happy posture. Especially on the occasion of an unarmed teen's death by cop.

He also discusses the general rule that people repeat in our comments all the time: "never point a weapon at anything you do not intend to shoot." And yet, of course, in pretty much every picture of the police here, we see them pointing weapons. And sometimes worse. Here's some video of a police officer in Ferguson not just pointing a weapon at some people livestreaming the protests, but telling the livestreamers that "I will fucking kill you." When the streamers ask him for his name, he says "Go fuck yourself."

And, again, remember that this is not in response to any terrorist threat, but to some protests after a fellow police officer killed an unarmed teenager. While that particular officer has since been suspended, it seems worth questioning this particular approach to policing.

Actually, isn't it about time we rethought the entire way that this country handles policing?

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]]>just-wondering...https://www.techdirt.com/comment_rss.php?sid=20140820/11411528266Tue, 12 Aug 2014 03:36:00 PDTNYPD Officer Chokes Man To Death; Cops Blame Cellphone Recordings And People 'Feeling They Have More Rights'Tim Cushinghttps://www.techdirt.com/articles/20140810/20475228171/nypd-officer-chokes-man-to-death-cops-blame-cellphone-recordings-people-feeling-they-have-more-rights.shtml
https://www.techdirt.com/articles/20140810/20475228171/nypd-officer-chokes-man-to-death-cops-blame-cellphone-recordings-people-feeling-they-have-more-rights.shtmlappointed oversight ordered by Judge Scheindlin after finding that elements of its infamous stop-and-frisk program were unconstitutional. Scott Greenfield has a very stark recounting of the incident, as well as a recording of Eric Garner's last moments. (Here's additional footage, which includes the officer who applied the lethal chokehold waving at the camera, as well as several officers gamely pretending Garner is simply passed out.)

The New York City Patrolmen’s Benevolent Association, the largest union representing NYPD officers, said in a statement that it was “criminals like Mr. Orta who carry illegal firearms who stand to benefit the most by demonizing the good work of police officers.”

Come on, you have to be impressed by the statement. The problem is no longer [Officer] Pantaleo killing Garner, but “criminals like Mr. Orta who carry illegal firearms who stand to benefit the most by demonizing the good work of police officers.” This is poetry. This is genius. It was all about criminals demonizing cops, not cops killing people.

As nearly impossible as it is to "demonize" someone with an unaltered recording of their actions, Lynch found a way to at least attempt to flip the narrative. Orta is a criminal. Pantaleo is a police officer. Lynch's statement asks the public to choose a side. Do you want to side with criminals, or do you want to let bygones be bygones (including the occasional homicide) and side with New York's finest?

It may well be the reddest of herrings, the most irrelevant of questions, but it will be the focus of the attack on the video necessary to show how Police Officer Pantaleo killed Garner. And no doubt Lynch took a deep breath upon learning of Orta’s arrest, and how his tenure as PBA president was again secure by the opportunity to show that “police officers routinely risk their lives for the benefit of the community,” and so the least we can do in return is forgive them the occasional killing.

But it's not just criminals the police (and their supporters) are looking to, well, demonize in hopes of steering the narrative. It's everyone. Everyone who doesn't wear NYPD blue. (via The Honest Courtesan)

Assaults on police officers are up 4 percent this year compared with last year — a disturbing new trend that’s part of an emerging disrespect for authority on the street, cops and experts told The Post.

Disrespect, like respect, is earned. You can earn respect, or you can squander it. Disrespect doesn't arise on its own. If "authority" doesn't like this, it has ways of changing this. Unfortunately, it means making difficult changes and dealing with ingrained attitudes and prejudices.

“The biggest thing is that you’re going to see more cops get hurt, and that’s the sad part,” said one Manhattan cop, blaming it on the decreased use of “stop, question and frisk...”

This may be partially right but for the wrong reasons. When the NYPD could stop nearly anyone for no reason at all, it had basically ordained harassment and intimidation. With this gone, fewer people are going to keep their heads down and eyes averted and simply allow the police to shove them up against the nearest wall or bend them over the nearest squad car hood.

So, who's to blame for this rise in assaults? It's the citizens themselves, apparently. It's their fault that it's hard (or slightly harder) to be a New York cop these days.

“The streets are absolutely more dangerous for other people, too,” said the officer, adding the rise of cellphone videography is also problematic, since suspects “want to put on a show for the camera.”

(And cops don't want to be watched...) So, First Amendment-protected activity is part of the problem. What else?

“People feel they have more rights and they can’t be stopped. There is no respect,” said a Brooklyn cop, who recalled a recent arrest of an armed man who used the crackdown on stop-and-frisk as a reason to resist arrest. “People feel like they know the law better than we do.”

Too many rights for citizens. Also a problem. (And there's the demand for unearned respect again...) Maybe people don't know the law better than NYPD officers, but they can't go above the law, as officers do when they deal out excessive force, tell people to stop recording, hassle people for walking while black, or book people on bullshit charges simply because they don't like their attitude. All in all, the imbalance of power has hardly shifted. But to hear these cops tell it, you'd think the city was a half-step away from mob rule, with officers holed up in well-fortified precinct houses. All the NYPD is receiving is pushback it hasn't felt in years. And it's killing them. (Not literally, of course...)

Ideally, what can citizens do to ensure the (im)balance of power returns to normal?

Well, one Manhattan cop, using the citizen killed by an NYPD officer (homicide, remember?) as an example, says this is how citizens should behave when approached by police.

“Obviously, he resisted, and he could have avoided all of that by just going through the process,” another Manhattan cop said. “Everybody likes to point fingers, but no one wants the fingers pointed at them. If people think they are being treated unfairly, they should sue the city after they go through the process instead of resisting.”

"All of that" being shorthand for "choked to death by a police officer." New Yorkers should just submit to any form of police harassment and go through "the process," something that could easily give them a criminal record when they haven't truly performed a criminal act and then spend their time, money and energy fighting in the city's courts to have their grievances addressed and their good names restored.

This police officer is actually saying that people should just deal with cop bullshit and sue later. The only "right" you possess is the option to file a civil lawsuit. Cops, on the other hand, should be given free rein to act as they please, and when the lawsuit finally arrives, possibly be held accountable for their actions if the court somehow manages to find the officer(s) in question don't qualify for full or limited immunity.

A much better idea would be for the NYPD to make massive efforts to restore the trust and respect it has destroyed under Ray Kelly's "leadership." If you want respect, GO AND EARN IT. Demanding full compliance is something autocrats do, not publicservants. You've forgotten who you actually work for. You don't work for the NYPD. YOU WORK FOR THE PUBLIC.

If the NYPD can't get that straightened out, then it needs to learn how to take a punch. It's certainly delivered enough of them. Every police department asks for patience while they investigate their own wrongdoing, but every cop starts swinging and/or shooting when someone takes a shot at one of their own. An officer kills a citizen and suddenly cops start fretting about the "antagonistic" behavior of the public. Have one cop simply think he hears gunfire possibly aimed in his direction and the wrath of an entire department will focus in that person's direction -- and it won't stop until every officer's gun is empty.

If the NYPD is feeling a bit more apprehensive about its interactions with the public after the death of Eric Garner, so be it. It's all earned. Maybe now they'll have the slightest empathy for the countless citizens who lived with this feelingday in and day out during the decade-plus run of stop-and-frisk.

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]]>OBEYhttps://www.techdirt.com/comment_rss.php?sid=20140810/20475228171Mon, 18 Nov 2013 05:28:04 PSTGuy Builds Ten Weapons With Products Purchased After Getting Through Airport SecurityMike Masnickhttps://www.techdirt.com/articles/20131117/00491425268/guy-builds-ten-weapons-with-products-purchased-after-getting-through-airport-security.shtml
https://www.techdirt.com/articles/20131117/00491425268/guy-builds-ten-weapons-with-products-purchased-after-getting-through-airport-security.shtmlBoing Boing, Gizmodo and Business Insider, all had stories on a guy who showed how to build a small bomb in less than ten minutes with items that could all be purchased after already passing through TSA security in an airport. The bomb may not be that big, but you could see how it could do at least some damage (and, given the situation, it's not that difficult to imagine ways to make changes to it that would be more damaging).

But, here's the thing. That video isn't the only weapon shown. The YouTube account Terminal Cornucopia actually put up ten videos of weapons that can be built on the air side of airport security, including a crossbow, a remote detonator, a slingbow, a "remotely triggered incendiary suitcase," a shotgun, a spiked club, a pewter slug and a blowgun.

So, who's behind this? Apparently, it's a security researcher named Evan Booth who explains that he sent all of these examples to the TSA. He also explains his response to the obvious question: "but what if the terrorists see these videos?"

That’s a great question. An even better question is: What if they already know all this? All of these findings have been reported to the Department of Homeland Security (TSA) to help them better detect these types of threats. Furthermore, the next time you fly, you’ll be flying as a more informed consumer (and taxpayer, possibly) — one who is more equipped to demand better, more appropriate airport security.

Which, of course, is really the point. Pretending that keeping this info secret makes people safer means believing that if you don't know about a security hole it goes away.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20110826/10250315704Fri, 27 Sep 2013 05:15:39 PDTPA School Being Sued For Suspending 7-Year-Old Student 'Armed' With A Novelty Buzzing PenTim Cushinghttps://www.techdirt.com/articles/20130926/12151824667/pa-school-being-sued-suspending-7-year-old-student-armed-with-novelty-buzzing-pen.shtml
https://www.techdirt.com/articles/20130926/12151824667/pa-school-being-sued-suspending-7-year-old-student-armed-with-novelty-buzzing-pen.shtml
Let's forgo the usual preamble running down previous clashes between common sense and school weapons policies and get right to it. Here's another example of zero tolerance and the damage done, involving a seven-year-old and his dangerous gag gift/pen.

On January 15, 2013, G boarded his bus "armed" with a novelty pen that emitted a small buzz when touched, and showed it to some friends. At some point during the trip to school, the bus driver noticed the pen, asked to see it and then confiscated it from G.

Three days later, the principal of Hershey Elementary, Joy MacKenzie, called G's parents and told them their son had violated the school weapons policy. They were asked to remove him from the school immediately and then handed down a four-day suspension for his violation. At no point were G's parents allowed to contest the decision.

Here's the school's extremely broad definition of "weapon."

Weapon - the term shall include by way of example and not limitation, any poison gas, knife, cutting instrument, cutting tools, nunchaku stick, firearm, shotgun, rifle, and any other tool, instrument or implement capable of inflicting bodily injury or property damage, and shall include any item that is represented to be a weapon, that is threatened to be used as a weapon, or that has the appearance or characteristics of a weapon, such as a toy gun or water pistol.

Unless you consider a very mild shock to be "bodily injury," there's no way a novelty buzzing pen falls under any part of this weapons policy. I suppose it could be argued that someone could be stabbed with the pen, but that would mean the removal of every pen and pencil in the school (along with every child).

Principal MacKenzie apparently viewed the pen as a weapon and based solely on that, she has now, by virtue of this suspension, placed a seven-year-old pen wielder into the same category as actually dangerous students carrying actual weapons. The policy states that the following mandatory actions are carried out for any violations.

Violation of this policy by any student shall result in the following:

1. Immediate exclusion from class or activity. 2. Notification of the Derry Township Police Department. 3. Contact of custodial parent. 4. Immediate exclusion from the school for a ten (10) day out-of-school suspension will be imposed, whereupon a minimum of one (1) year expulsion will be recommended to the superintendent and School Board for ratification. At the discretion of the superintendent, the determination of discipline, including the immediate ten (10) day out-of-school suspension and the one (1) year expulsion, may be modified on a case-by-case basis.

Such expulsion shall be given in conformance with formal due process proceedings required by law.

Presumably, this "incident" was also reported to local law enforcement (per policy), although there seems to be no documentation included of the responding officer's hearty laughter accompanying the sound of a phone being placed back on the cradle. (Or, failing that, the officer's immediate visit to Hershey Elementary to detain the dangerous thug using all available [but appropriate -- always appropriate] restraint methods.)

Considering the policy provides for a minimum 10-day suspension, it appears the superintendent (Joseph McFarland) overrode the minimum at his discretion, dropping it to four days. Unfortunately, his discretionary skills failed to remove the suspension entirely and ask that administration not bother him again until a student brings a real weapon to school, or at least, something resembling a real weapon.

It should be noted that the policy provides for "formal due process proceedings as required by law," but apparently that sentence is just boilerplate the district forgot to delete before publication. According to the lawsuit, the parents were given no avenue of recourse or protest, which poses a problem for the school.

The District has arbitrarily deprived G of his state-created property interest in public schooling without due process of law on the basis of nothing but hysterical and overly-zealous application of a constitutionally-deficient school policy.

Beyond that, the lawsuit states that the policy itself is unconstitutionally vague and contrary to Pennsylvania state law.

The Weapons Policy is facially unconstitutional for vagueness under the First Amendment because it fails to define with specificity the kind of activity that is proscribed so that a student can conform his or her conduct to the Policy's requirements. Pennsylvania criminal law requires that any potential bodily harm from an item alleged to be a weapon be "serious" as an appropriate limiting condition--a condition absent from the School District's policy...

[T]he district applies the weapons policy to items which are incapable of inflicting bodily harm or even creating a reasonable fear in any person that such items might cause bodily harm…

The lawsuit is also seeking a permanent injunction against the district's enforcement of this policy as well as the expungement of the violation from G's record.

Could the school have known that this ridiculous abuse of its weapons policy would have resulted in a lawsuit? Well, anything's possible, but I would imagine that was the furthest thing from the minds of MacKenzie and McFarland when they put their heads together and suspended a student for four days for possession of a novelty pen. Instead, the administrators pursued the "overzealous application" of an already exceedingly-broad policy. Trimming the suspension down from 10 days was likely supposed to implicitly signal that G's offense was minor, but the reality of the situation is that it should never have gotten to this point. The school may defend its actions by stating it erred on the side of caution, but that's a lousy, worn-out excuse. These policies are in place but there's no reason they can't be applied using some common sense filtering.

It's unlikely the court will grant the permanent injunction, but maybe the dust the suit's kicked up will push the school towards narrowing the scope of the policy and generally encouraging the administration to remember the human minds on its staff are perfectly capable of making reasonable decisions when not hampered by inflexible policies that greatly discourage discretionary decisions.

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]]>there's-no-stupid-quite-like-'broad,-inflexible-policies'-stupidhttps://www.techdirt.com/comment_rss.php?sid=20130926/12151824667Wed, 17 Jul 2013 02:39:00 PDTTexas Lawmaker Proposes Bill To Strip Funding From Schools That Abuse Zero Tolerance Weapons PoliciesTim Cushinghttps://www.techdirt.com/articles/20130715/09261623802/texas-lawmaker-proposes-bill-to-strip-funding-schools-that-abuse-zero-tolerance-weapons-policies.shtml
https://www.techdirt.com/articles/20130715/09261623802/texas-lawmaker-proposes-bill-to-strip-funding-schools-that-abuse-zero-tolerance-weapons-policies.shtml
We've written previously about the stupidity inherent in school "zero tolerance" policies, perhaps most painfully exemplified by a student's expulsion for "threatening" others with a pop tart he had bitten into the shape of a gun. When it comes to anything conceivably weapon-related (pop tart, 2-inch toy gun, fingers in a gun shape), most schools tend to overreact. This is largely due to a federal requirement that ties school funding to mandatory expulsions of students who bring weapons on campus.

There have been a few efforts made to roll these policies back. The NEA itself has released a paper [pdf] pointing out that questions the effectiveness of these policies in light of the fact that what little research exists indicates the policies have had very little effect on curbing unwanted behavior.

Despite the lack of rigorous research on this subject, existing case studies and analyses of suspension and expulsion data at the local level suggest that zero tolerance policies are not deterring misbehavior. In Tennessee, the number of drug and violent offenses in schools increased substantially over the first three years of a statewide implementation of zero tolerance policy. Furthermore, research has indicated that bullying is still rampant in many of the nation‘s schools. Approximately one in five elementary and middle school students admits to bullying his or her peers periodically. Unfortunately, researchers have not examined rates of misbehavior or suspension on a national level for schools with zero tolerance policies.

The report suggests several alternative policies and responses, noting that suspensions and expulsions tend to aggravate the problem, rather than acting as a deterrent.

It also would deny federal funding to any school that punishes a child for "using a pencil, pen or other writing utensil to simulate a firearm."

The bill states: "So-called 'zero-tolerance' weapons policies in federally funded schools are being used to outlaw harmless expressions of childhood play.

"So-called 'zero-tolerance' weapons policies in federally funded schools are being used to teach children to be afraid of inanimate objects that are shaped like guns."

Because Stockman is so focused on a single aspect of zero tolerance policies (his bill includes several examples of students being expelled or suspended for non-weapon "weapons," including a child who was kicked out of school and arrested for wearing an NRA shirt), his bill only addresses each specific example.

The bill continues: "No funds appropriated pursuant to any provisions of law may be used for any educational institution which punishes a student as a result of any of the following actions by the student:

"(1) brandishing a pastry or other food which is partially consumed in such a way that the remnant resembles a gun; "(2) possession of a toy gun which is two inches or less; "(3) possession of a toy gun made of plastic snap together building blocks; "(4) using a finger or hand to simulate a gun; "(5) vocalizing imaginary firearms or munitions; "(6) wearing a T-shirt that supports Second Amendment rights; "(7) drawing a picture of, or possessing an image of, a firearm; or "(8) using a pencil, pen or other writing utensil to simulate a firearm."

This is all well and good as it applies to each one of these instances, but proponents of zero tolerance policies have shown incredible amounts of creativity when applying them, rarely duplicating previous efforts. Everything noted here is highly unlikely to crop up again.

This also ignores two other factors. The first problem is Stockman's own. This bill follows up his failed attempt back in January to repeal the Gun-Free School Zones Act, which ties funding to weapons policies, using the argument that the bill encouraged school shooters by giving them a weapons-free target. This looks like an attempt to run an end-around and achieve the same aim (strip school funding). As such, it's probably destined to die a swift death when put to vote.

The other factor is that zero tolerance policies have enjoyed a two-decade sprawl and the havoc wreaked isn't limited, as Stockman's bill is, to only faux guns. A report [pdf] by the Coalition for Juvenile Justice points out just how far these previously limited policies have spread.

Since then, the range of situations to which zero tolerance policies have been applied has broadened. Many school districts now include drugs, alcohol, disruptive behavior, and nonviolent offenses among zero tolerance infractions. According to the most recent data of national implementation of zero tolerance policies, 94% of schools have zero tolerance policies for weapons or firearms, 87% for alcohol and 79% have mandatory suspensions or expulsions for violence or tobacco. Examples of the everbroadening scope of zero tolerance policies include treatment of nail files, paper clips, scissors, and plastic knives as weapons and Aspirin, Midol, and Certs as drugs.

Stockman's bill seeks to address the problem, but only addresses outlying events, rather than core issues. His solution, untying federal funding from zero tolerance weapon policies, is probably a non-starter, especially in the wake of the Sandy Hook shooting. Another problem unaddressed is schools' increasing reliance on law enforcement to handle disciplinary actions, one that tends toward criminalizing behavior once written off as "kids acting like kids." The deepest problem, the spread of policies to cover every conceivable instance of "misbehavior," won't be addressed at all by a bill specifically tailored to address events that have already happened and are unlikely to reoccur.

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]]>but-ultimately-won't-fix-zero-tolerancehttps://www.techdirt.com/comment_rss.php?sid=20130715/09261623802Fri, 24 May 2013 08:40:00 PDTAnother CA Cop Thinks A Cell Phone Might Be A Dangerous WeaponTim Cushinghttps://www.techdirt.com/articles/20130521/21222323165/another-ca-cop-thinks-cell-phone-might-be-dangerous-weapon.shtml
https://www.techdirt.com/articles/20130521/21222323165/another-ca-cop-thinks-cell-phone-might-be-dangerous-weapon.shtml
Citizens recording police activity often find their subjects in no mood to be photographed. These amateur photographers/filmmakers are threatened, attacked or dragged to the nearest police station and booked, using charges like "interference" or "disorderly conduct" or "walking in an alley" to make sure they don't walk away unintimidated.

A California cop who was being video recorded by a smartphone said she was in fear for her life because the phone could have possibly been a gun, marking at least the fourth time this year a cop in this country has uttered those nonsensical words.

The trend of insinuating cell phones can be guns began earlier this year when Juan “Biggie” Santana had his Sony Bloggie confiscated by Hialeah police officer Antonio Sentmanat in South Florida.

Then again in Arkansas when a cop ripped an iPhone out of a man’s hands who had been trying to document the Exxon oil spill outside Little Rock.

It certainly hasn't reached epidemic levels yet, but the argument seems to be increasing in popularity. The story we covered contained a statement by the police officer that indicated this new "cell phone=gun" logic is part of the training process.

Now, it's not entirely impossible to make a weapon shaped like a cell phone. It's just highly unlikely. PINAC's article contains a video of a cell phone/gun, but it seems to require a bulky, out-of-date antenna to hide the barrel. The weapon exists (or existed), but it (or any knockoffs) never made an appearance here in the US.

[T]hat weapon never even made it to the United States, according to ExCopLawStudent, a former cop turned law student who firmly believes in the right of officers to ensure their safety, but who also understands police paranoia doesn’t override the Constitution.

In 2000 or 2001, police in Europe discovered a four-shot gun disguised as a cellphone. Since then police officers in the United States have claimed on multiple occasions that civilians who were recording video with their cellphones had to put the phone down. Why? Because it could be a weapon.

Geez, guys, you’re killing us. There have been no cellphone guns recovered in the United States, according to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. None. Zero. Nada. Zilch.

In addition, there are exactly zero court cases that discuss the issue. As a matter of fact, there is nothing in the legal world that discuss the issue. No law review articles, no trial or appellate briefs, nothing.

So, the threat of a weaponized cell phone is hovering at zero, or close enough to it to be laughable when a law enforcement officer uses this "danger" as an excuse to prevent being recorded. Even the supposedly trained-in-the-art-of-phoneguns cops don't take the argument seriously. Or at least no more seriously than the TSA agents who are instructed to consider 3 ounces or less of a liquid "safe," ignoring the fact that any traveler with opposable thumbs could pour 6 ounces of liquid into two three-ounce containers and sail right through the checkpoint with a "dangerous" amount of contraband.

[I]f Detective Shannon Todd of the Newark Police Gang Unit was really so stupid to believe that the phone could have been a gun, then why did she first order the citizen to place it back into his pocket?

The rhetoric is used solely to shut down filming. If this was an actual weapon, one presumes it would be confiscated and the carrier arrested, or at least detained until proper paperwork was produced (cell phone bill?). This also conveniently ignores the fact that many everyday objects that people carry around have also been converted into weapons at one point or another.

The only threat a cell phone presents to an officer making this assertion is the possibility of public embarrassment. I suppose we should be happy that these officers are at least going above and beyond the "you can't film me" argument and showing a little creativity in their shutdowns of amateur policewatchers. But this one crosses the "fine line between clever and stupid" and just keeps running.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20110311/01552013459Fri, 1 Mar 2013 11:50:00 PSTFederal Judge Alex Kozinski Talks About Using Tor To Surf Silk Road & The Armory For Drugs, Weapons And HitmenMike Masnickhttps://www.techdirt.com/articles/20130301/00190222165/federal-judge-alex-kozinski-talks-about-using-tor-to-surf-silk-road-armory-drugs-weapons-hitmen.shtml
https://www.techdirt.com/articles/20130301/00190222165/federal-judge-alex-kozinski-talks-about-using-tor-to-surf-silk-road-armory-drugs-weapons-hitmen.shtmldo I always agree with?), like many folks who follow legal issues, Judge Alex Kozinski, the chief judge of the court of appeals for the 9th circuit, is one of my favorite judges. Known almost as much for his ability to entertain as for his clear, well-written (and frequently funny) judicial rulings, one thing that's always been clear is that, unlike some judges, Kozinski is both down to earth and really inquisitive when it comes to understanding how things really work, rather than just accepting common wisdom. Last night, Judge Kozinski gave a lecture at Santa Clara University on "The Two Faces of Anonymity." As I expected, it was entertaining and insightful, with a few Kozinski-esque surprises thrown in.

By far the most entertaining part of the evening was Kozinski sharing (with screenshots) his experience exploring the "hidden web." He claims that when he told his children about the topic of the talk, they told him he needed to explore the hidden web. So, "with some trepidation," he downloaded Tor and dove in, starting out at Silk Road, which still remains the most well known hidden website out there. As we've noted in the past, for all the excitement and press attention Silk Road has received for being a totally anonymous online marketplace used mainly for buying and selling drugs and other illicit goods, it still is a fairly small business. Still, Judge Kozinski detailed his exploration of the market, including checking out various drugs (including many he'd never heard of before). He also looked into the ability to buy forged documents and lots of counterfeit software.

From there, he moved over to Silk Road spin-off, The Armory, to see what weapons they had for sale, including 6lbs of C4 explosives. Of course, this is the point that we realize that Kozinski's claims of just having done this recently are probably a fabrication, given that The Armory shut down last summer. It's possible he didn't actually do any of this, but got screenshots from elsewhere online, but there's just something amusing in thinking about Judge Kozinski sitting at home surfing through these sites. He showed a few sites for hiring hitmen, and joked that two of them had such similar language and pricing that he was tempted to report them to the FTC for likely collusion.

He marveled at how much like regular online stores these sites were -- including things like seller ratings -- and compared it to his experiences with eBay. Of course, he also noted that it's entirely possible the whole thing is a front by the feds to track these kinds of things, but if so, he was impressed with the level of detail.

While much of this was entertaining, the point (I think!) was to highlight all of the kinds of things that anonymity enables -- but it wasn't in a necessarily negative or judgmental way (even if he's suggested his concerns in the past). Instead, it was more of a realist approach to what's happening out there and how there are interesting challenges presented concerning both anonymity and privacy -- which he notes are related but not the same thing. To show the difference, he discussed your neighbors across the way, where they may not be anonymous to you, but what they do in their bedroom is kept private from you. Yet, take a random couple in Times Square on New Years Eve doing the same thing -- and they may be "anonymous," but not private at all.

While he did express some concerns about where all this leads, including a dig at anonymous comments online, his biggest concern appeared to be about government abuse thanks to technology. He spent a fair bit of time on the NSA's infamous spy center in Utah, which is supposedly storing a ridiculous amount of information on us all. He pointed out that having that much information in the hands of government is dangerous, and suggested it's likely to be abused. As an example, he pointed to the story from all the way back in 2001 when he and other federal judges discovered that the feds were monitoring their internet usage, something the judges had never been told about.

He explained that the software had been put on the computers to protect the judiciary intranet from being attacked by hackers from China or whatever, but most of the time they weren't doing anything at all, so it wasn't long before the scope began to creep, and someone realized that, hey, if that monitoring software is on those computers, it could also be used to spy on what sites judges were surfing. The judges only found out about it when a judge was called out for his inappropriate surfing habits.

While he didn't say anything explicitly about it, it seems like this should be a pretty clear warning to folks who are supporting laws like CISPA. When you increase information sharing to the government for one purpose, you can almost guarantee that there will be scope creep over time. Someone will point out that "hey, we're already doing this for security, so why not for spying on people...."

Similarly, Kozinski is worried about how all this number crunching and data collection by governments means that people are going to be "targeted" for heightened scrutiny based on some algorithms, even if their activity is perfectly legal. He even noted that he's assuming that his own decision to download Tor and check out Silk Road and other sites probably means that he set off some alarms and may be in for heightened scrutiny. When asked about that later during the Q&A, he admitted that it might just be his own paranoia, but he wouldn't be surprised if it was true.

When asked about how to push back on all this government surveillance, he said that everyone keeps pointing to the courts, and saying that it's their responsibility to limit the government's powers, but suggested that the courts are limited, because it's not clear that anonymity and privacy are really Constitutional issues. Or, he said, if there is a basis for them in the Constitution, it's fairly weak, and could easily be overcome by "other concerns." Personally, I think that he downplayed both the First Amendment's protection of anonymity as confirmed by the Supreme Court, as well as the 4th Amendment's (too often ignored) protection of privacy. Still, he seemed to think that this was really an issue where it was up to Congress to prevent abuses. That's kind of depressing if you remember Congress' recent "debate" and subsequent rubberstamping of the FISA Amendments Act, giving the NSA much more power to spy on Americans with little oversight.

One other bit of useful info: he seemed fairly convinced by Justice Sotomayor's statements on the 3rd party doctrine in the US v. Jones case about GPS tracking. If you don't recall, the 3rd party doctrine basically says that you don't have privacy rights in information that you've left in the control of a third party. That's obviously quite problematic in an age of cloud computing, where all your data is probably in the hands of third parties. The government has been relying on this fact to access all sorts of data with little oversight for quite some time. It's good to see Kozinski hint at the idea that the 3rd party doctrine just isn't reasonable any more in the information era.

There were plenty of other tidbits, but basically it was an interesting discussion of privacy and anonymity, with a strong focus in how the government is collecting way too much information on us all these days. There was also some brief talk of how much information companies are collecting too -- including his apparent uncomfortableness with things like Google Maps' Street View and Satellite View (he joked about how you can see him sunbathing nude if you can find his house). But, for the most part, he seemed to think that this was an area where the government was doing a better job keeping companies somewhat in check.

Oh yeah, and one other amusing tidbit: in talking about how easy it is to track us all due to our mobile phones, he asked how many people had smartphones (or, more specifically, "phones with email on them") and noted that when he talks to lawyers, they all do. He noted that lawyers always had their email near them to respond to clients quickly, because otherwise you get fired, but this cool tool "given to you by work" just shackles you while also denting your privacy. And then he claimed that when work gives him a smartphone, he gets it without a sim and then sells the device on eBay. Maybe he should try selling it on Silk Road next time...

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100415/0114419019Mon, 6 Aug 2012 15:37:00 PDTThe Pending Kodak Patent Auction May Create Weapons Of Business DestructionDaniel O'Connorhttps://www.techdirt.com/articles/20120803/04544719927/pending-kodak-patent-auction-may-create-weapons-business-destruction.shtml
https://www.techdirt.com/articles/20120803/04544719927/pending-kodak-patent-auction-may-create-weapons-business-destruction.shtmlproblem has been getting much worse. In fact, the amount of litigation involving software patents has tripled since 1999 and a software patent is more than twice as likely [PDF] to be involved in litigation as its non-software counterparts.

Our broken system affirmatively penalizes innovation. Empirical research has shown that the more money a company invests in R&D, the more likely it is to be punished with infringement litigation. This weakens our economy and harms our nation’s global competitiveness. Just ask America’s most prolific legal scholar, Judge Richard Posner. Furthermore, last year’s patent “reform” legislation, the America Invents Act (AIA), did little to solve the fundamental problems at the heart of the current explosion in litigation. As Richard Waters of Financial Times wrote last year, the AIA did little to fix the broken system:

Yet, while there was general agreement that an overhaul was badly needed, the law that was eventually passed did little to fix what is widely seen as the current system’s chief weakness: that it leads to the issuing of too many patents that lack real innovation and that clog up the legal system once their holders seek to enforce them against alleged infringers.

As a result, we have arrived at another inflection point as patents, and the problems surrounding them, are again in the headlines. Although the Samsung vs. Apple trial, and its fight over who owns the rights to a rectangle, is getting a majority of the recent headlines, another major patent battle is looming. This Monday opening bids were submitted ahead of an August 8 auction for some 1,100 patents belonging to the now bankrupt Eastman Kodak Corporation. Given the rampant patent litigation in the high-tech space, the thought of 1,100 more litigation weapons flooding the marketplace is troubling. The situation gets even more worrisome when one looks at the parties lining up to bid.

The Wall Street Journal reports that both Apple and Google are leading competing consortia in an effort acquire these patents, which largely pertain to digital photography – a key component in smartphones. The consequences of this will potentially open up another front in the smartphone patent wars. Although Google’s consortium appears defensive, as it is made up of its partners in the Android ecosystem, Samsung, LG and HTC, and defensive patent aggregation firm RPX (which pledges never to assert its patents offensively), Apple’s consortium is headlined by the notorious (and massive) patent assertion firm, Intellectual Ventures, and Microsoft.

As many observers of the patent world may remember, there have been two major recent patent auctions in the IT space, where failing companies’ patent portfolios have been put on the auction block. In the case of Novell, which was in the process of being acquired by Attachmate, 882 patents were sold to a consortium of bidders, including Apple, Microsoft, EMC and Oracle. In the case of Nortel, the former Canadian Telecom giant that fell on hard times and went bankrupt, its patent portfolio was eventually purchased by Rockstar Bidco, a consortium of companies that included Apple, Microsoft, Sony and EMC. In both cases competition concerns were raised, particularly from supporters and users of open-source software, that prior commitments made by patent holders and new commitments made by the purchasers, not to use patents against open-source software (or to abide by prior FRAND commitments) would be honored.

However, despite these concerns, the antitrust regulators world over – relying on pledges from the parties involved in the transaction – stated their belief that the prior commitments from Novell and Nortel regarding the use of their patents would be honored by the new owners.

When the OSI first learned of this proposed transaction, we were alarmed that four companies with dominant market positions and a mixed attitude towards open source software could redeploy what the open source community had considered to be a friendly asset–Novell’s patent portfolio–into a weapon against open source software. We are delighted that you have made clear that the [german antitrust regulator] cannot allow a transaction that would create or strengthen a dominant position on markets in which such investors are active, and we are happy to provide the additional information you have requested about the proposed restructuring of this transaction.

In the US, the DOJ approved both deals (plus Google’s Motorola acquisition) but said it would continue to monitor the wireless device space because it remained concerned as to whether or not prior pledges would be honored:

The division’s continued monitoring of how competitors are exercising their patent rights will ensure that competition and innovation are unfettered in this important industry.

All three of the transactions highlight the complex intersection of intellectual property rights and antitrust law and the need to determine the correct balance between the rightful exercise of patent rights and a patent holder’s incentive and ability to harm competition through the anticompetitive use of those rights.

However, soon thereafter, the President of the company behind the Apple and Microsoft backed bid – the Rockstar Consortium – publicly repudiated new commitments made by the companies that established it, saying: “We are separate. [Apple and Microsoft's pledges] don’t apply to us.”

This is made even more troubling by other comments that the head of the Rockstar Consortium, John Veschi, made in the same article, which included doozies like:

“Pretty much anybody out there is infringing… It would be hard for me to envision that there are high-tech companies out there that don’t use some of the patents in our portfolio.”

And this revealing comment that articulates Veschi’s justification for holding the rest of the industry hostage:

“A lot of people are still surprised to see the quality and the diversity of the IP that was in Nortel… And the fundamental question comes back: ‘How the hell did you guys go bankrupt? Why weren’t you Google? Why weren’t you Facebook? Why weren’t you all these things, because you guys actually had the ideas for these business models before they did?’ They were within a Bell Labs-y kind of environment, and maybe the wherewithal of turning them into businesses wasn’t necessarily there.”

So, to recap, the commitments that gave worldwide antitrust regulators the confidence to approve these controversial deals are being repudiated by the individual with the power to ignore them, and who thinks that:

Everyone in the IT industry infringes on his patents.

Because Nortel – his former employer where the Rockstar patents came from – had some ideas, but was less successful at implementing them, he has the right to hold the rest of the IT industry hostage.

Apparently, the purpose of the patent system is to allow unsuccessful companies the right to extract billions of dollars from companies that are more successful. (Again, how is this not a net drag on innovation?)

But the very fact that he claims EVERYONE in the IT industry infringes on his patents seems to be prima facie evidence that many, if not most, of these patents were not novel, and therefore invalid… unless he is contesting that every IT company stole Nortel’s ideas, which is laughable. But I digress…

What we do know now is that patent commitments made to competition authorities are suspect (and, of course, commitments are made to be broken), particularly when patents are controlled by NPEs outside of the direct control of the original purchasers.

Loose Nukes

To fully understand the problems posed by Intellectual Ventures’ involvement in this new consortium, one must also understand the tectonic shift in the underlying foundations of the patent system. Although the explosion of low-quality, poorly defined patents – particularly in the software space – has long been identified as a problem that greatly increases litigation risk and the overall deadweight loss to our economy, the problem has been largely isolated until recently. It was once thought that the threat of Mutually Assured Destruction (MAD to borrow the Cold War acronym), meant that the big companies with large patent portfolios would not sue their peers because they would be sued back and everyone would lose. However, the rapid growth of huge non-producing entities (NPEs) that exist solely to exert other people’s patents (usually acquired through bankruptcy) against successful companies greatly changed the precarious MAD equilibrium that once existed.

Some – admittedly clever – companies, such as Apple, recognized that they could acquire patents, take a perpetual license to them, and then sell them off to NPEs such as Intellectual Ventures (or as they have already done with Digitude), who are then incentivized to attack the original purchasers' competitors (because the purchasers have a license and its competitors don’t). This strategy allows the original purchaser to attack their competitors and make money off of the patent sale to the NPE (and often they take a cut of the litigation and settlement revenue as well) all the while insulating themselves from the threat of countersuit (the NPE is immune to the threat of counter-assertion because they don’t make products and therefore do not infringe on anyone’s patents).

To extend the nuclear war metaphor to encapsulate this new phenomenon, if the old paradigm was Mutually Assured Destruction where corporations, like nation states, refuse to attack each other because of the threat of personal annihilation, these new NPEs are akin to stateless terrorist entities with nuclear weapons, who are immune to direct threat of attack. Also, much like stateless terrorist organizations, these NPEs move in the shadows and cover their tracks. Intellectual Ventures, by one scholars account, has at least 1300 shell corporations – so its activities are difficult to track. So, we therefore see “states” discretely selling “nukes” to “terrorist cells” with the understanding that they will be used against their foes who cannot directly attack them back.

The bankruptcy portfolio auctions, however, are a variation on this theme, and are more similar to loose nukes from “failed states,” wherein weapons of business destruction flood the marketplace as one entity fails, and the remaining entities with the most to lose – enterprises that actually produce value – must scramble to keep these loose nukes out of the hands of less reputable actors.

DOJ Should Review Newest Auction with Recent Trends in Mind

These patent consortiums allow companies like Apple and Intellectual Ventures to work together to acquire more patents that will be used in the thermonuclear war against Android. As the case of the prior auctions make clear, the commitments that competition authorities have relied on in the past to ensure that these consortiums don’t use patents “anticompetitively” (which is semi-ironic, given that new patent thickets are valuable because they give you the right to harass your competition) are suspect at best, particularly because Intellectual Ventures will filter the patents through a network of “legally distinct” shell companies – companies that “companies” will likely claim prior commitments don’t apply to them – before they are used against Apple’s Android competitors, which they surely will be, given the incentives of those involved.

Given the Justice Department’s prior concerns and recent micro and macro trends in the patent ecosystem, it seems that it is completely appropriate for the DOJ (and competition authorities around the world) to review this upcoming transaction from a different lens than it did just 6 months ago. The world has changed.

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]]>loose-nukeshttps://www.techdirt.com/comment_rss.php?sid=20120803/04544719927Tue, 8 May 2012 17:00:00 PDTDailyDirt: Flying WeaponsMichael Hohttps://www.techdirt.com/articles/20100521/1052099528/dailydirt-flying-weapons.shtml
https://www.techdirt.com/articles/20100521/1052099528/dailydirt-flying-weapons.shtmlBat bombs were created during World War II, but after spending a couple million dollars on development, the project was cancelled. Here are just a few more modern examples of flying weapons that are currently under development.

By the way, StumbleUpon can recommend some good Techdirt articles, too.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100521/1052099528Thu, 29 Dec 2011 17:00:00 PSTDailyDirt: Never Get Involved In A Land War In Asia...?Michael Hohttps://www.techdirt.com/articles/20110601/01482814498/dailydirt-never-get-involved-land-war-asia.shtml
https://www.techdirt.com/articles/20110601/01482814498/dailydirt-never-get-involved-land-war-asia.shtml

By the way, StumbleUpon can recommend some good Techdirt articles, too.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20110106/15442812558Thu, 24 Jul 2008 18:41:00 PDTToy Maker Now Building Weapons For The ArmyMike Masnickhttps://www.techdirt.com/articles/20080724/1645011783.shtml
https://www.techdirt.com/articles/20080724/1645011783.shtmlWired points out that a maker of a toy rocket has been hired by the US Army to create a variable speed gun using the same basic technology used in the toy. The weapon would allow soldiers to use the same gun to fire both lethal and non-lethal rounds. Nonlethal weapons are a big business these days, but it still seems a bit out of place for a toymaker to start building one.